Excerpt: - - ..one is mortgaged to secure one debt and then both are mortgaged to secure another debt' the meaning is clearly has or have been mortgaged; ghose's well-known work on mortgages and does not consider the provisions of the transfer of property act on which we have based our conclusion......to allow redemption of any portion of the mortgaged property except on payment of the whole of the mortgage debt, and further limitations of the right to redeem are to be found in the doctrines of tacking and consolidation. in india the right is now governed by section 60 which gives the mortgagor a right to redeem on payment or tender of the mortgage money but expressly provides that ' nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except where a mortgagee, or if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.' this section ignores the equitable.....

Judgment:

1. We think this question must be decided with reference to the provisions of the Transfer of Property Act, and more especially of Section 60 which deals with the right to redeem. Redemption in England is an equitable relief which the Court allows on such terms as have been considered equitable in a long course of decisions. One of the established rules is not to allow redemption of any portion of the mortgaged property except on payment of the whole of the mortgage debt, and further limitations of the right to redeem are to be found in the doctrines of Tacking and Consolidation. In India the right is now governed by Section 60 which gives the mortgagor a right to redeem on payment or tender of the mortgage money but expressly provides that ' nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except where a mortgagee, or if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.' This section ignores the equitable doctrine of consolidation which requires the mortgagor to pay something more than the mortgage money as a condition of redemption, but it adopts and gives statutory force to the rule that a part of the mortgaged property is not to be redeemed except on payment of the mortgage money. One exception only is made for the case of the mortgagee having himself acquired part of the mortgaged property. To insist on the mortgagor paying the mortgagee the whole mortgage money in such a case without a proportionate abatement would give the mortgagor an immediate right of suit against the mortgagee or his assignees to recover back by way of contribution what he had paid in excess of his proportionate share, and this the legislature has avoided by the exception. It has not made any such statutory exception in favour of the mortgagor in the case, mentioned in the order of reference, of a mortgagee voluntarily releasing from the suit a portion of the mortgaged property, and we are not at liberty to derogate from the terms of the section by introducing one. Nor can we entertain the argument that such a case can be considered to come within the exception because the action of the mortgagee in releasing part of the mortgaged property is an acquisition by himself within the meaning of the section.

2. If the mortgagor is not entitled to an abatement from the mortgage money on this ground in a suit for redemption, the same rule must, we think, apply in a suit for sale or foreclosure in which the Court has equally to fix the sum on payment of which the mortgagor is entitled to redeem. In Krishna Ayyar v. Muthukumaraswamiya Pillai I.L.R. (1905) M. 217 there is an observation at the close of the judgment ' that if the action of the mortgagee (in releasing part of the mortgaged property) has had the effect of extinguishing the mortgage lien upon any portion of the mortgaged property so as to relieve it from the liability to bear its proportion of the debt, he cannot recover more than what the property he proceeds against would be rateably liable for.' It is, we think, clear that the release by the mortagee has no such effect, and that the released portion of the mortgaged property remains liable for contribution under Section 82 of the Transfer of Property Act, as pointed out by Chamier and Piggot, JJ., in Jugal Kishore Sahu v. Kedar Nath I.L.R. (1912) A. 606. The owner of part of the mortgaged property who pays off the mortgage debt is entitled under this section to contribution from the rest of the mortgaged property in the absence of a contract to the contrary, that is to say, unless he has deprived himself of that right by contract. We may also observe that the words in the first paragraph of the section ' where several properties...are mortgaged to secure one debt' means have been mortgaged, just as in the second paragraph the words 'where...one is mortgaged to secure one debt and then both are mortgaged to secure another debt' the meaning is clearly has or have been mortgaged; and that the language of the section affords no foundation for the argument that the owners of part of the equity of redemption could be deprived of their right to contribution under the section by the action of the mortgagee in releasing another portion of the mortgaged property.

3. The decision in Ponnusami Mudaliar v. Srinivasa Naickan I.L.R. (1908) M. 333 proceeds upon the authority of a passage in Mr. Ghose's well-known work on Mortgages and does not consider the provisions of the Transfer of Property Act on which we have based our conclusion. This is also true of the Calcutta decisions to the same effect to which we have been referred, beginning with Surjiram Marwari v. Barhamdeo Persad (1905) 1. C.L.J. 337 With great respect we are constrained for the reasons already given to differ from those decisions, and to hold that having regard to the provisions of the Transfer of Property Act it is not open to us to give effect to the suggested equity against a mortgagee who releases part of the mortgaged property from the mortgage. To do so would no doubt make a subsequent suit for contribution unnecessary, but on the other hand it would introduce additional complications into mortgage suits which are already complicated enough. In our opinion however the question has to be decided not on the balance of convenience, but in accordance with the provisions of the Act, and for the foregoing reasons we answer the question referred to us in the negative.